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IOWA APPLIED HISTORY SERIES 

EDITED BY BENJAMIN F. SHAMBAUGH 
VOLUME II NUMBER 4 


Direct Legislation 
in Iowa 

BY 

J. VAN DER ZEE 







REPRINTED FROM VOLUME TWO OF THE IOWA 

APPLIED HISTORY SERIES PUBLISHED AT IOWA CITY 

IN 1914 BY THE STATE HISTORICAL SOCIETY OF IOWA 




















DIRECT LEGISLATION IN IOWA 



IOWA APPLIED HISTORY SERIES 

EDITED BY BENJAMIN F. SHAMBAUGH 


DIRECT LEGISLATION 
IN IOWA 


BY 

J. VAN DER ZEE 


PUBLISHED AT IOWA CITY IOWA IN 1914 BY 
THE STATE HISTORICAL SOCIETY OP IOWA 



5L 






JF ^35 

-13 Vs 


0, 8F B. 

DEC 6 *514 




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EDITOR’S INTRODUCTION 


Directness may be said to characterize the demands 
of modern democracy: direct nomination, direct 
election, direct responsibility, and the direct dis¬ 
charge of public officials are accompanied by the 
demand for direct legislation. While no one serious¬ 
ly questions the principle of popular control under¬ 
lying these institutional forms of democracy, their 
indiscriminate and unrestricted use in certain in¬ 
stances has resulted in some disappointment. 

Perhaps it may transpire, through the discipline 
of political experience, that in the interest of de¬ 
mocracy itself the number of elective officers will be 
greatly reduced, and the principal use of the recall 
and direct legislation will become corrective of ma¬ 
jor abuses or a spur to action too long delayed. This 
much is certain: the principle of popular control 
will not be snuffed out because the newer methods 
of its expression, like new toys, are at first over¬ 
worked. 

Benj. F. Shambatjgh 

Office of the Superintendent and Editor 
The State Historical Society of Iowa 
Iowa City Iowa 

5 


4 


AUTHOR’S PREFACE 


This paper is an attempt to define clearly what is meant 
by the initiative and referendum and to point out the 
significance of direct legislation in Iowa to-day. It is 
interesting to observe the extent to which the principle 
of this institution has been applied for a long time to the 
affairs of townships, school districts, counties, towns, and 
cities of the State. Furthermore, in the light of experi¬ 
ence in other Commonwealths it appears that direct 
legislation in matters of State-wide importance is fast 
coming to be recognized as an indispensable feature of 
popular government. 

The writer disclaims any desire to be partial in the 
presentation of the subject: he holds no brief for or 
against direct legislation. So much has been said and 
written on the present movement that the writer has 
consulted and relied upon some of the best sources and 
authorities for his summary of arguments. The Notes 
and References do not, therefore, represent an exhaustive 
bibliography of materials on the subject. 

Acknowledgments are due to Mr. Benj. F. Sham- 
baugh, Professor of Political Science in the State 
University of Iowa, for very helpful criticisms and 
suggestions. 

Jacob Van der Zee 

The State Historical Society of Iowa 
Iowa City Iowa 

7 







CONTENTS 


I. Popular Government and Direct Legislation . 11 

THE PROGRESS OF POPULAR GOVERNMENT . . 11 

DIRECT LEGISLATION: INITIATIVE AND REFERENDUM 12 

THE SPREAD OF THE INITIATIVE AND REFERENDUM . 15 

II. The Initiative and Referendum in Iowa . . 19 

THE INITIATIVE AND REFERENDUM IN TOWNSHIP 

AFFAIRS. 19 

THE INITIATIVE AND REFERENDUM IN SCHOOL AFFAIRS 21 

THE INITIATIVE AND REFERENDUM IN COUNTY AF¬ 
FAIRS ........ 23 

THE INITIATIVE AND REFERENDUM IN MUNICIPAL 

AFFAIRS ....... 28 

THE STATE-WIDE INITIATIVE AND REFERENDUM . 33 

THE PROPOSED STATE-WIDE INITIATIVE AND REFER¬ 
ENDUM ....... 38 

III. The Case For and Against Direct Legislation . 43 

ARGUMENTS AGAINST THE INITIATIVE AND REFER¬ 
ENDUM ....... 43 

ARGUMENTS FOR THE INITIATIVE AND REFERENDUM 49 

IV. General Standards or Canons of Criticism . . 58 

Notes and References ..... 63 


9 



I 


POPULAR GOVERNMENT AND DIRECT 
LEGISLATION 

THE PROGRESS OF POPULAR GOVERNMENT 

If the hope of democracy lies in more democracy, then 
surely the people of America are well on the road to the 
goal of popular government, for they are making phe¬ 
nomenal advances in regaining the powers which they 
once entrusted to their representatives. During the past 
ten years especially have they changed the old order of 
things: government by political parties, convalescing 
from the blow inflicted by the adoption of the Australian 
ballot system, suffered relapses when the voters decided 
to nominate directly their own candidates for local and 
State offices and for the United States Senate. 

Nor have the people stopped at the adoption of merely 
State-wide primaries: the national convention for the 
nomination of presidential candidates may soon be of 
interest chiefly as an institution of past politics. More¬ 
over, non-partisan methods in the elections of commis¬ 
sion-governed cities have spread in Iowa so as to include 
judges, and may no doubt be extended to cover all State 
and local officers, whose views on national politics cer¬ 
tainly have nothing to do with their qualifications as 
managers of purely local affairs. And, lest wicked or 
incompetent men should escape the people’s vigilance 
and safely run the gauntlet of primary and election, 
voters in the Des Moines plan cities and in some States 


11 


12 


APPLIED HISTORY 


possess the recall — which is the modern or democratic 
method of removing objectionable servants from office. 
And finally, the equal suffrage movement promises to 
enforce democracy by doubling the electorate. 

Supplementary to the ideas of direct nomination and 
direct election and direct discharge of public servants, 
and aimed at the correction of the same evils, is the 
institution of direct legislation which finds expression in 
the initiative and the referendum. Of the three depart¬ 
ments of government voters have ordinarily found the 
greatest fault with the legislative, for through a long 
series of years their legislators have not only oftentimes 
abused the law-making function but they have also re¬ 
fused to give ear to the people’s desires. Indeed, so wide¬ 
spread has been the movement for the initiative and the 
referendum that the people of most of the States west 
and a few east of the Mississippi now exercise the privi¬ 
lege of direct legislation in one form or another. 

DIRECT LEGISLATION: INITIATIVE AND REFERENDUM 

The conception of popular sovereignty — that is, rule 
by the people — is fundamental in American government. 
Indeed, popular control has everywhere been a basic 
factor in the history of Anglo-Saxon law and politics: 
originally the representative principle was developed 
simply as a substitute for pure democracy in communities 
where the population and area made folk-moots (popular 
assemblies) impracticable. Direct legislation is, there¬ 
fore, older and more fundamental than legislation by 
chosen representatives. 

The miners who crossed the Mississippi in 1830 and 
began operations in the Dubuque lead district before the 
Iowa country had been formally opened to settlement 


DIRECT LEGISLATION IN IOWA 


13 


assembled around an old cotton-wood log and unanimous¬ 
ly agreed to be governed by the code of mining rules and 
regulations of Illinois, with two exceptions. Likewise 
squatters in the Iowa country, seeking to protect land 
claims until they might secure titles from the United 
States government, met together, organized claim associ¬ 
ations, and adopted laws for their government. In the 
very political beginnings of Iowa, then, is found the prin¬ 
ciple of popular assent and participation in law-making. 

Direct legislation may be defined as the making of 
laws directly by the people: it is distinguished from law¬ 
making by representative assemblies called legislatures. 
Where in the early history of England the people of 
communities met in folk-moots (popular assemblies) and 
gave their assent to policies, or where in the history of 
New England the voters of the town met in town meeting 
and passed resolutions, there was direct legislation. But 
when communities enlarged and spread out over much 
territory or when they became united into large units, 
then folk-moots and town meetings became impracticable; 
and so, representative assemblies came to take the place 
of popular assemblies and law-making by representatives 
was substituted for law-making directly by the people. 
Finally, in recent years dissatisfaction with the workings 
of legislatures and distrust of representative legislators 
have brought on a movement for more direct legislation 
through the initiative and referendum. 

The initiative enables the people to propose the enact¬ 
ment of desired legislation in two ways. First, when 
they wish to obtain the enactment of a law a certain 
number of voters may draft a bill and submit it to the 
legislature for passage. If the legislature refuses to 
accede to their petition, the bill may then be submitted 


14 


APPLIED HISTORY 


to a popular vote for rejection or approval. This is 
known as the indirect initiative . Secondly, bills initiated 
by the voters may be directly placed upon the official 
ballot for a direct vote of the people at a general or 
special election. This is the direct initiative, and it is 
strictly the method of direct legislation. 

The referendum, which enables voters to reject un¬ 
desirable legislation, also appears in two forms. First, 
where the legislature is obliged to refer to the voters a 
law which it has enacted, there exists the compulsory 
referendum . Secondly, where the legislative authority 
may or may not submit its enactments to the people as it 
chooses or where the voters have the right to call for a 
popular vote upon a measure which the legislature has 
enacted, there the optional referendum prevails. 

Although this new system of direct legislation has not 
assumed a definite stereotyped or final form — being still 
in the experimental stage — it is a fact that the people of 
many American States have gained recognition as the 
active source of all power in government and now have a 
direct voice in the enactment of legislation. There can 
be little mistake about the significance of the new move¬ 
ment, for, as President Wilson says, “the initiative and 
referendum afford a key to our own premises .’ 9 In other 
words, direct legislation means control of legislative ser¬ 
vants by the people instead of control of the people by 
legislative servants — which is but a common-sense appli¬ 
cation of the principle that a master may do or undo his 
servant’s work. 1 Such is really the simple idea which 
lies at the bottom of the contemporary reform which 
finds expression in the initiative and referendum. 


DIRECT LEGISLATION IN IOWA 


15 


THE SPREAD OF THE INITIATIVE AND REFERENDUM 

Although direct legislation is by no means a recent 
invention, it may still be regarded as an experiment in the 
government of the American States. Ever since 1778 
the people of America have been familiar with the prac¬ 
tice of referring State constitutions and constitutional 
amendments to the voters. Indeed, America is the home 
of the referendum as regards constitutional law. Then, 
too, about the middle of the nineteenth century the people 
of many States began to reserve to themselves the right 
to determine certain questions of State-wide importance; 
and so they placed constitutional limitations or restric¬ 
tions upon their legislatures “when dealing with matters 
that involve peculiar temptations or the pressure of local 
and other interests.” 2 

Moreover, from a fairly early day in American town 
and county government the initiative and the referendum 
have been resorted to in the determination of many im¬ 
portant local matters. But the latest and most compre¬ 
hensive movement for direct legislation in America, 
unlike the earlier phases “which are native in origin and 
grew out of purely indigenous ideas and conditions ’ ’, 
appears to be an importation or conscious imitation of 
institutions which have attained by far their greatest 
development in the Republic of Switzerland and her 
cantons. 3 Thus, the United States and Switzerland share 
the credit of originating the institution of direct legisla¬ 
tion— the former in case of constitutional provisions 
and the latter in matters of statutory regulations. 

Several Swiss cantons adopted the initiative as early 
as the middle of the nineteenth century — an example 
which was soon followed by every canton after the year 
1869. But not until 1891 was the idea extended to include 


16 


APPLIED HISTORY 


amendments to the constitution of the Swiss Republic. 
Federal statutes, however, are not yet subject to initia¬ 
tion by the voters of that country. On the other hand, the 
practice of referring to the people all amendments to the 
federal and the cantonal constitutions has prevailed in 
Switzerland since 1874, while statutes enacted by the 
cantonal legislatures are liable to the compulsory refer¬ 
endum in some cantons and to the optional referendum 
in others. Likewise, laws passed by the Swiss Federal 
Assembly may, at the option of a certain number of 
voters, be submitted to the people to take effect upon a 
favorable vote. 4 It is this latter form of referendum — 
that is, the optional referendum — which has engrossed 
so much public attention not only in other European 
countries but more especially in the American States. 

Since its first adoption in South Dakota in 1898, 
fifteen other American States have made constitutional 
provision for the immediate exercise of the optional ref¬ 
erendum on general legislation: Oregon in 1902; Nevada 
in 1904; Montana in 1906; Oklahoma in 1907; Maine in 
1908; Missouri in 1908; Arkansas in 1910; Colorado in 
1910; Arizona in 1911; California in 1911; New Mexico in 
1911; Ohio in 1912; Nebraska in 1912; Washington in 
1912; and Michigan in 1913. In Massachusetts in 1913 
the legislature was empowered to refer any act or resolve 
to the people. Initiative and referendum machinery has 
existed in Utah since 1900, and in Idaho since 1912 — 
waiting to be put into operation by the people *s unwilling 
representatives. 

The voters of Wyoming and Mississippi failed to 
record sufficiently high majorities for the initiative and 
referendum amendment in 1912; while those of Kansas 
and Illinois got no chance to express themselves, despite 


DIRECT LEGISLATION IN IOWA 


17 


strong agitation in favor of the new idea in many quar¬ 
ters. Furthermore, a new constitutional amendment will 
be voted upon by the people of Missouri in 1914 to restrict 
the scope of the present system, while constitutional 
amendments proposing the establishment of the refer¬ 
endum will be submitted to the electorate for adoption or 
rejection at the general election of 1914 in the States of 
Minnesota, Texas, Wisconsin, and North Dakota; and, 
the Thirty-sixth General Assembly consenting, the people 
of Iowa may voice their sentiments on the proposed 
amendment not earlier than the year 1915. 5 

In the United States the initiative has not met with so 
general a reception as the referendum. Statutes alone 
may be initiated by the voters in South Dakota (since 
1898), Montana (since 1906), Maine (since 1908), and 
Washington (since 1912); while constitutional amend¬ 
ments and statutes may be initiated in Oregon (since 
1902), Oklahoma (since 1907), Missouri (since 1908), 
Arkansas (since 1910), Colorado (since 1910), Arizona 
(since 1911), California (since 1911), Ohio (since 1912), 
Nevada (since 1912), Nebraska (since 1912), and Mich¬ 
igan (since 1913). In some of these States measures may 
be proposed for direct submission to the voters. In 
others proposed bills must first be submitted to the legis¬ 
lature and upon their failure to pass must be referred to 
the people. In four States — Texas, Minnesota, Wis¬ 
consin, and Iowa — it is proposed to permit the initiation 
of both constitutional amendments and statutes; while 
North Dakota will have only the statutory initiative on 
account of the people’s desire to shield their prohibition 
system against attack. 6 

Concerning the actual use of these institutions it is 
only necessary to add that the initiative was not put into 


2 


18 


APPLIED HISTORY 


operation in any State until the year 1904 — since which 
time Oregon has “applied it more frequently and with 
greater positive results than all the other States that 
possess it put together”—and in no State did the voters 
ballot on laws subject to the referendum before the year 
1906, so that the opportunities for direct legislation by 
the people have not yet been numerous. 7 At the same 
time there is abundant evidence of an increasing dissatis¬ 
faction with the uncontrolled representative system of 
government: having lost confidence in their legislative 
servants, the voters have apparently come to a point 
where they demand the opportunity to determine the 
State ’s policies in many matters great and small. 


II 

THE INITIATIVE AND REFERENDUM IN IOWA 


That the words 4 ‘ initiative’ ’ and 11 referendum’ 9 are hut 
new names for old institutions may be gathered from a 
glance at the administration of local government in Iowa; 
for in the townships, school districts, towns, cities, and 
counties of this State both ideas have long since been 
fully institutionalized. For a long time in the history of 
Iowa many important questions of local administration 
have been submitted to the resident voters for their de¬ 
termination. Although the General Assembly of this 
State may not constitutionally delegate its law-making 
power to another body, there is no longer the slightest 
doubt but that the legislative authority established by 
the State in municipal corporations may on some occa¬ 
sions and must on others consult the people’s wishes 
before certain policies can be put into operation. 8 

THE INITIATIVE AND REFERENDUM IN TOWNSHIP AFFAIRS 

It was in 1868, during the early years of railroad¬ 
building, that the General Assembly conferred upon 
townships the power to vote taxes in aid of railroad con¬ 
struction. The statute then passed was but the beginning 
of a series of acts upon the subject, and though it under¬ 
went some changes for the protection of the voters in 
later years its main provisions have survived down to 
the present day. 9 

When one-third of the resident freehold taxpayers of 


19 


20 


APPLIED HISTORY 


any township petition the board of trustees that the ques¬ 
tion of aiding a railroad or electric railway company in 
the construction of a projected line within the township 
be submitted to the voters, the trustees shall at once call 
a special election by newspaper publication and by post¬ 
ing notices in five public places. If the proposition which 
is thus initiated and referred to the voters of the town¬ 
ship receives a majority of the votes polled, the proper 
local officers shall cause the taxes to be levied and col¬ 
lected. 

Again, in 1872 a statute was enacted enabling one- 
third of the legal voters of any district township to call 
upon the board of school directors to issue notice of a 
meeting of qualified electors in order to vote on the ques¬ 
tion whether the sub-districts should be organized into 
separate and independent districts. 10 Four years later 
another act made it possible for one-third of the legal 
voters residing in any civil township already divided into 
independent districts to prepare a written request asking 
the township trustees to call an election on the question 
whether the independent districts should be constituted a 
district township. A majority of the voters could thus 
return to the old system which existed before 1872. Such 
is the law of Iowa to-day. 11 But since 1888, if one-third 
of the legal voters in each sub-district of any school town¬ 
ship submit a written request to the board of school 
directors, the electors by a majority vote may bring about 
the organization of sub-districts into independent school 
districts. 12 

Since 1896 it has been possible for a majority of the 
resident freeholders of a township to petition the board 
of trustees for an election on the proposition whether 
taxes shall be levied for the erection of a public hall in the 


DIRECT LEGISLATION IN IOWA 


21 


township. 13 Such, then, are the questions of township 
government upon which the voters may express their 
opinion. In only a few other instances was the initiative 
and referendum provided for by statute. 14 

THE INITIATIVE AND REFERENDUM IN SCHOOL AFFAIRS 

It is in the field of school affairs, as already suggested 
in a few instances above noted, that the initiative and the 
referendum have been given wide application. As early 
as 1847 the qualified electors of the school district in their 
annual meeting enjoyed the right to decide many impor¬ 
tant matters by their votes. Since then they have been 
given power to initiate certain propositions for submis¬ 
sion to all the voters at the annual meeting on election 
day. As members of school corporations resident citi¬ 
zens of the territory affected — both men and women who 
have the ordinary suffrage qualifications — decide by 
ballot all questions which involve the issuance of bonds 
or the increase of the tax levy; while a great many other 
matters are determined by the voters alone. 

Thus, the board of directors of a school corporation in 
giving notice of the annual meeting may, or upon the 
written request of five electors of any rural independent 
district, or of ten voters of any school township, or of 
twenty-five voters of any city or town independent dis¬ 
trict having a population of five thousand or less, or of 
fifty voters of any other city or town independent district, 
shall, provide for submitting to the voters any of the 
following propositions: 

Shall a change of text-books be directed? 

Shall the school house or site or property be disposed 
of, and to what shall the proceeds be applied? 

What additional branches of study shall be taught? 


22 


APPLIED HISTORY 


Shall the school buildings be used for meetings of 
public interest? 

Shall any surplus in the school house fund be trans¬ 
ferred to the teachers’ or contingent fund? 

Shall the board obtain roads for proper access to the 
school houses? 

Shall a school house tax (up to a stated amount) be 
levied for the purchase of grounds, the construction of a 
school house, the payment of debts contracted for the 
erection of a school house, a school library, or for open¬ 
ing roads? 15 

Moreover, in the year 1896 it was enacted that when¬ 
ever a petition signed by one-third or more of the legal 
voters of a school township or independent district shall 
be filed, asking that free text-books be provided for the 
use of pupils in the public schools, the secretary of the 
school board shall cause notice to be given so that the 
electors may cast their ballots on the proposition at the 
annual election. 16 

Of more recent date (1906) and of great importance 
in Iowa school history is the statute which permits one- 
third of the electors residing upon not less than sixteen 
contiguous government sections to request the establish¬ 
ment of a consolidated independent district. After their 
petition has been approved by the county superintendent, 
if they reside in one county, or by the superintendents of 
two or more counties concerned in the formation of the 
proposed district, or by the State Superintendent if the 
county superintendents do not agree, the board of the 
school corporation in which the portion of the proposed 
district having the largest number of voters is situated 
shall call an election within ten days and ascertain the 
wishes of the majority. And when it is proposed to in- 


DIRECT LEGISLATION IN IOWA 


23 


elude in the district a town, city or village, twenty-five 
percent of the voters residing upon the territory outside 
of the town, city, or village shall he entitled to call for a 
separate referendum in their territory: if a majority of 
them object, the proposed independent district shall not 
be formed. 

THE INITIATIVE AND REFERENDUM IN COUNTY AFFAIRS 

The voters of Iowa have had a voice in proposing and 
determining many questions affecting their common wel¬ 
fare as inhabitants of counties. Indeed, the State Consti¬ 
tution stipulates one occasion when their wishes shall he 
consulted: no county boundary shall be changed by the 
General Assembly without the consent of a majority of 
the electors affected by the change. 17 

As far hack as 1840 the people of the several counties 
of the Territory of Iowa were given the right to vote on 
the subject of township organization and also to express 
their preferences for township names. Scott County 
voters who had set up township government were later 
authorized to return to the precinct system if a majority 
of them so elected. 18 

In 1847 the General Assembly passed a statute pro¬ 
viding that the electors in each county should, at the first 
township election, determine by ballot whether the county 
commissioners should grant licenses for the retail of in¬ 
toxicating liquors; and that the county commissioners 
might refer to the voters the same question every year 
thereafter when in their opinion it seemed proper to do 
so. In accordance with this local option law every county 
in the State except Keokuk County decided against 
license. 19 

Since 1851 a great many matters have been referred 


24 


APPLIED HISTORY 


to the people of the county, not only at regular elections 
but also at special elections called for the purpose. For 
example, it lies within the discretion of the board of 
supervisors to submit to the voters the questions whether 
money may be borrowed to aid in the erection of public 
buildings; whether any local or police regulation not in¬ 
consistent with the laws of the State shall be established; 
and whether a tax of higher rate than that provided by 
law shall be levied for the special purpose of repaying 
borrowed money or constructing or aiding to construct 
any highway or bridge, when the warrants of a county 
are at a depreciated value. 20 Every question referred to 
the people which involves the borrowing or expenditure 
of money must be accompanied by a provision to levy a 
tax for the payment thereof in addition to the usual 
taxes. 21 

From 1851, also, dates the so-called “herd law” which 
is still upon the statute book. Though at first the county 
board of supervisors had discretion to submit the matter 
to the people, since 1874 one-fourth of the legal voters 
have had power to compel the board of supervisors to 
submit to the people at a regular election, or at a special 
one called for that purpose, any one of the following ques¬ 
tions of police regulation: 

1. Shall stock be restrained from running at large ? 

2. Shall stock be restrained from running at large between 
sunset and sunrise ? 

3. Shall stock be restrained from running at large from the 
first day of (naming the month) in each year, until the first day 
of (naming the month) following? 

4. Shall stock be restrained from running at large between 
sunset and sunrise from the first day of (naming the month) in 
each year, until the first day of (naming the month) following? 22 


DIRECT LEGISLATION IN IOWA 


25 


The validity of the “herd law” was early questioned 
in the case of Dalby vs. Wolf which came to the Supreme 
Court of Iowa on appeal in 1862. The plaintiff alleged 
that the statute had no uniform operation, that it depend¬ 
ed for its validity upon the vote of the people and was not, 
therefore, the expressed will of the legislature. The 
court declared that the General Assembly had given the 
same rule to all the people of the State, simply enabling 
the voters of each county to determine for themselves 
whether a particular police regulation should or should 
not be adopted: the rule thus established went into effect 
whether the people voted or not. 23 

The “herd law” of 1851 had been in existence six 
years when the General Assembly sought to confer upon 
the counties a similar police power with regard to the sale 
of liquor. Prohibition having been established through¬ 
out the State by the act of 1855, the legislature two years 
later gave ear to the insistent demands of the liquor 
interests and passed a statute enabling the people of each 
county by a majority vote upon the petition of one hun¬ 
dred legal voters to abrogate the effect of the prohibitory 
law and to provide in its place a licensing system. In 
other words, the people of each county, speaking through 
a majority, might have their choice between living under 
a prohibitory law and living under a license law. This 
was clearly an attempt to establish local option, which 
has been called “the referendum in full bloom.” 

In the case of Geebrick vs. The State, which involved 
the application of this statute, the Supreme Court of 
Iowa assailed its validity on two grounds: first, the pro¬ 
ceedings authorized by the act were in effect the repeal 
of one law and the enactment of another by a vote of the 
people; 24 and secondly, the act would not operate uni- 


26 


APPLIED HISTORY 


formly in its practical working and effect. The judges 
(the Chief Justice only dissenting from the majority’s 
second reason) declared that the legislature was plainly 
surrendering the law-making power to the people, and 
that no law could constitutionally receive its vital force 
from something outside of the will of the legislature. 25 
Moreover, the court followed this precedent in 1871 when 
the prohibitory law of 1870 was held unconstitutional and 
void for the same reason. 26 

It is to be noted that these two liquor laws, like the 
herd law, were not to be submitted for a State-wide refer¬ 
endum before going into operation, but were to take ef¬ 
fect at once throughout the State. Their provisions 
merely enabled a majority of the voters of each county to 
determine by the ballot whether they would take advan¬ 
tage of the law and thus license persons to sell liquor. 
The present “mulct law”, passed by the Twenty-fifth 
General Assembly in 1894 and called by one writer “a 
kind of legislative subterfuge for local option”, differs 
from the acts of 1857 and 1870 only in that, instead of 
calling for a county-wide election and a majority vote to 
permit the sale of liquor, it merely requires a written 
statement of consent signed by a majority or sixty-five or 
eighty percent of the legal voters (depending upon the 
size of the town or city), a resolution of the local council, 
and the consent of property owners — all as conditions 
precedent to the grant of a license or bar to proceedings 
for violation of the prohibitory law. 27 

The earlier liquor laws threw the expense of an elec¬ 
tion upon the voters, whereas the present law places a 
burden upon those who seek the necessary consent: the 
former clearly represent an example of the local initia¬ 
tive and referendum, while the latter requires a local 


DIRECT LEGISLATION IN IOWA 


27 


referendum by personal solicitation instead of by public 
election. When the mulct law came up for judicial review 
in the case of The State vs. Forkner the Supreme Court 
of Iowa logically declared that it was a simple delegation 
to town and city councils of the power to make a police 
regulation after certain requirements had been complied 
with. Thus the court seems finally to have discarded the 
earlier decisions. 28 It is nevertheless interesting to re¬ 
call the dissenting opinion in The State vs. Forkner as 
expressed by Justice Kinne. 

Justice Kinne dissented because the so-called mulct 
law permitted the people and the local councils to repeal 
the existing prohibitory law. To quote his own words: 
“I think the rule of the majority opinion is full of peril, 
opens wide the door, and invites members of the legis¬ 
lature to put aside the discharge of the duties properly 
devolving upon them, removes the personal responsi¬ 
bility, which, under our form of government must ever 
rest upon the law-making power, and takes away the 
constitutional safeguards against unwise, ill-considered, 
and hasty legislation. In brief, it is a long step towards 
a government of the town meeting, and tends strongly to 
encourage the very evils in legislation which our repre¬ 
sentative form of government was created to correct.” 29 

Since 1855, whenever one-half of all the legal voters of 
a county desire to re-locate the county seat, they have had 
the power, upon petition to the board of supervisors not 
oftener than once in five years, to compel a popular vote 
upon the proposition at the next general election — the 
seat of justice being removed to the place receiving the 
highest vote. 30 And since the year 1860 the law has pro¬ 
vided that the board of supervisors shall not order the 
erection of a courthouse, jail, poorhouse, or other build- 


28 


APPLIED HISTORY 


ing, or bridge when the probable cost shall exceed a cer¬ 
tain amount (now $5000), nor purchase real estate for 
county purposes exceeding $2000 in value, until a proposi¬ 
tion therefor shall have been submitted to the legal voters 
of the county and adopted by a majority of those voting 
thereon at a special or general election. 31 

Since 1870 one-third of the electors of a county have 
had the right to petition and compel a vote on the ques¬ 
tions whether a county high school shall be established at 
a place named and whether a stated amount shall be 
levied in taxes for the necessary buildings. 32 Ever since 
the same year one-fourth of the electors of a county have 
been able to initiate for reference to the people the ques¬ 
tions whether the number of county supervisors shall be 
increased to five or seven, or reduced to five or three, as 
the case may be. 33 

Unique among the statutory provisions for the initia¬ 
tive and referendum in county affairs is the law of 1886 
which enables a majority of the members of grand army 
posts in any county to cause the board of supervisors to 
refer to the voters the question whether taxes shall be 
raised to aid in the erection of a soldiers’ and sailors’ 
monument or memorial hall. 34 Since 1890 a number of 
the school directors of the county, other than those in 
cities and towns, have been authorized to assume the 
initiative in a matter to be referred to the decision of all 
the voters: one-third of the directors may cause the ques¬ 
tion of county uniformity of school text-books to be sub¬ 
jected to the referendum. 35 

THE INITIATIVE AND REFERENDUM IN MUNICIPAL AFFAIRS 

Numerous opportunities are offered by the statute 
laws of Iowa for the exercise of the initiative and the 


DIRECT LEGISLATION IN IOWA 


29 


referendum, both compulsory and optional, in municipal 
affairs. In the days of the first State Constitution when 
at least one-fourth of the legal voters of a village, contain¬ 
ing a population of three hundred, desired incorporation 
as a town, they were empowered upon petition to apply 
to the proper authority and thus secure the submission of 
the question to a vote of the people. Then, after a ma¬ 
jority of the voters had adopted the proposition, the 
articles of incorporation were drawn up and referred to 
the people: voters were thus allowed to express their 
opinions for or against the document which was to regu¬ 
late their future civic life. At that time, also, the people 
had to give their sanction to any change in the name of 
their town and to favor a loan on the credit of their city. 
The voters likewise had to give their consent to the an¬ 
nexation of territory and to the vacation of the town plat, 
in whole or in part, after a petition had been filed to that 
effect. 36 

In many of these particulars the provisions of the law 
to-day are practically the same as those found in the Code 
of 1851. To-day, upon the petition of twenty-five quali¬ 
fied voters of an unincorporated town, the district court 
must submit to all those concerned the question of incor¬ 
poration. If, after a majority of voters have favored the 
idea of incorporation, twenty-five percent of them desire 
to break the bonds of the new status, a petition to that 
effect will result in an election to decide whether incor¬ 
poration shall be discontinued. 37 To-day also, the town 
or city council must consult the people’s wishes in the 
matter of the annexation of territory, the consolidation or 
union of two towns, and on any proposed change of 
name. 38 Since the year 1858 a statute has permitted ten 
legal voters of a city or town to call for the opinion of the 


30 


APPLIED HISTORY 


electors on separate organization as an independent 
school district. 39 

Ten percent of the voters in cities which received 
special charters from the General Assembly previous to 
1857 may now initiate, for reference to the people, a 
proposition to abandon their charter and organize under 
the provisions of the general law. 40 And since 1868 one- 
third of the resident freehold taxpayers of any town or 
city have had the privilege of obtaining from their fellow- 
citizens a vote on the question whether the local authori¬ 
ties shall levy taxes in aid of railroad (and since 1902 of 
electric railway) construction. A favorable vote makes 
it incumbent upon local officers to carry out the wishes of 
the taxpayers in this respect. 41 

Furthermore, since 1882 a majority of resident free¬ 
hold taxpayers have been entitled to the privilege of 
drafting a petition to compel the town or city council to 
submit, for the approval of two-thirds of the voters, the 
question whether sufficient land shall be purchased (or 
funds shall be appropriated for such purchase) and do¬ 
nated to any railway company owning or constructing a 
line in the city for depot grounds, engine houses, and 
machine shops. 42 

Another series of statutes enacted since 1872 is the 
foundation for other powers vested in the electors of 
towns and cities. For example, before money can be 
appropriated for the formation and maintenance of a free 
public library, the voters at a general or special election 
must give their consent to the establishment of the li¬ 
brary. 43 No council may ‘ 4 purchase, establish, erect, 
maintain and operate within or without the corporate 
limits of any city or town, heating plants, waterworks, 
gas works or electric light or electric power plants. . . . 


DIRECT LEGISLATION IN IOWA 


31 


and lease or sell the same ’ \ nor may the council authorize 
individuals or private corporations to erect and maintain 
such works or plants for a term of more than twenty-five 
years or renew or extend such a grant, unless a majority 
of the legal electors voting thereon at a general, city, or 
special election favor the proposition. 44 In special char¬ 
ter cities the council may order a vote on any of these 
questions as well as on the further question of granting 
franchises to street railway or telephone companies, or 
the mayor shall submit any question to a referendum 
upon the petition of twenty-five property owners of each 
ward in the city. 45 

Again, it appears that upon the presentation of a 
petition signed by a majority of the resident freehold tax¬ 
payers of a city or town, the local council shall order a 
special election submitting to the voters the question 
whether a stated tax levy shall be voted to aid in the con¬ 
struction of any county bridge when the estimated cost is 
not less than ten thousand dollars. 46 Such has been the 
law since 1882. A statute passed in 1897 forbids any city 
or town to grant, renew, or extend a franchise permitting 
the use of its streets and alleys by telegraph, telephone, 
street railway, and electric light and power companies, 
unless a majority of the legal voters favors the proposi¬ 
tion, the council, or the mayor upon the petition of 
twenty-five property owners of each ward in a city or 
fifty property owners in any incorporated town, sub¬ 
mitting the question to them. 47 

Most interesting is the role now played by the initia¬ 
tive and referendum in the commission-governed cities of 
Iowa. The plan inaugurated at Galveston, Texas, met 
with instant favor in this State; but its advocates devel¬ 
oped and added some features which made the Des Moines 


32 


APPLIED HISTORY 


Plan famous the country over as a model of city govern¬ 
ment. By the terms of the Iowa statute twenty-five per¬ 
cent of the legal voters of cities having a population of 
2000 or over may cause a special election on the subject 
of adopting the commission plan. If a majority of the 
votes cast favors the proposition, the new government 
will be established. Thereafter twenty-five percent of the 
voters may propose ordinances for the city. Upon a 
refusal to pass a measure thus initiated, the council must 
submit the measure to the electors of the city at the gen¬ 
eral municipal election if it comes after thirty days and 
within ninety days, or else at a special election. But only 
ten percent of the electors need initiate legislation if the 
general election comes within thirty days. 

In the commission-plan cities there is afforded an ex¬ 
ample of the optional referendum: an ordinance passed 
by the council (except one passed by a two-thirds vote for 
the immediate preservation of the public peace, health or 
safety) shall not go into effect for ten days, so that 
twenty-five percent of the electors may have an oppor¬ 
tunity to sign a petition of protest against such ordi¬ 
nance. If the council does not then reconsider and repeal 
its action, it shall submit the measure to a popular vote at 
the general or a special municipal election; and only if a 
majority of the qualified electors voting thereon favor it, 
shall the ordinance go into operation. 

And should the people of a commission-governed city 
tire of their plan of government after a six years’ trial, 
twenty-five percent of the electors may bring about a 
special election on the proposal to abandon their organ¬ 
ization and to return to the ordinary form of city govern¬ 
ment. The people of these Iowa cities operating under 
the Des Moines plan are, therefore, the active source of 
all political power. 48 


DIRECT LEGISLATION IN IOWA 


33 


THE STATE-WIDE INITIATIVE AND REFERENDUM 

The people of Iowa have never had the right to pro¬ 
pose State-wide legislation for submission to a vote of the 
electorate — that is, they have not had the initiative in 
State affairs. To be sure, they have always been per¬ 
mitted to appeal to the General Assembly through peti¬ 
tions, but by this method they have had no assurance that 
their wishes would be enacted into law. Accordingly, 
they have adopted the very common American practice of 
getting one or more legislators to champion their cause in 
the committees and on the floor of the houses — which 
practice has fostered the twin evils of lobbying and log¬ 
rolling. Indeed, it is said that unless private citizens and 
their advocates in the legislature resort to such well- 
known tactics, they can scarcely hope to see their pro¬ 
posed measure triumph. The provision of the Bill of 
Rights in the Iowa Constitution that the people have the 
right freely to assemble together to counsel for the com¬ 
mon good, to make known their opinions to their repre¬ 
sentatives, and to petition for a redress of grievances 49 
— all this it appears is but an empty constitutional guar¬ 
anty when the legislature may turn a deaf ear to its 
petitioners. 

Although the people of Iowa can not initiate constitu¬ 
tional amendments and statutory law except by petition, 
they have been frequently consulted as the source of all 
political power. Since government is instituted for their 
protection, security, and benefit, 50 many matters of 
fundamental governmental importance have been re¬ 
ferred to them. Here again ‘ 4 the roots of the present lie 
deep in the past.” The State-wide referendum, for in¬ 
stance, dates back to the Territorial period. When 
Governor Robert Lucas and the Legislative Assembly in 


3 


34 


APPLIED HISTORY 


1840 and again in 1842 asked the people whether they 
desired statehood, the voters decisively answered “no” 
in every county of the Territory; but in 1844 they favored 
the proposition by a considerable majority. 

The people then elected delegates to a constitutional 
convention which met at Iowa City. The work of this 
body, the Constitution of 1844, was twice referred to the 
people in 1845 and twice rejected by them. The Constitu¬ 
tion formulated by a second convention in 1846 met with 
favor from a slight majority of the electors; and so after 
much voting the pioneers definitely launched their State 
government in December, 1846. Again, in the year 1856, 
when the question of revising the Constitution was re¬ 
ferred to the people, they voted to call a convention. 
Shortly afterward by a very slight majority the people 
ratified the work of the convention in the form of the 
present Constitution, at the same time rejecting the prop¬ 
osition to strike the word “white’’ from the article on the 
suffrage — thus withholding the right to vote from the 
negroes of Iowa until after the Civil War. 51 

The fundamental principle that the sovereign people 
shall ratify the Constitution has, as a matter of course, 
been extended to constitutional amendments. Following 
the defeat of the Constitution of 1844, the Constitution of 
1846 provided for future amendment by convention only, 
the question of holding such convention and the conclu¬ 
sions of the convention both being referred to the people 
for adoption or rejection. Moreover, in the adoption of 
the present State Constitution, as in the case of practi¬ 
cally all American constitutions of an earlier day, the 
people consented to severe restrictions upon their right 
to change the fundamental law. In the State of Iowa to¬ 
day two successive General Assemblies must approve a 


DIRECT LEGISLATION IN IOWA 


35 


proposed amendment before referring it to the people, 
or the General Assembly may at any time refer the ques¬ 
tion of a constitutional convention to the people. And 
once in every ten years the question of calling a constitu¬ 
tional convention is by the Constitution submitted to a 
vote of the people. 

Present methods of amending and revising the Consti¬ 
tution may be said to be “difficult enough not only to 
avoid but also to prevent hasty legislation, excessive 
legislation, and partisan legislation, and at the same time 
easy enough to make possible those changes that are de¬ 
manded by progressive society.” 52 The result has been 
that the people of Iowa have voted to amend their Consti¬ 
tution at seven different times since 1857. But two of 
these attempts were declared unconstitutional by the 
State Supreme Court; while a vast number of amend¬ 
ments have been proposed and lost in the General As¬ 
sembly at various times. 53 

Besides the compulsory State-wide referendum on the 
question of calling a constitutional convention and on 
amendments to the Constitution, the people of Iowa have 
reserved to themselves the right to express their opinion 
on a few important matters of State-wide legislation. 
They have never had the optional referendum, that is, the 
right to call for a popular vote on an objectionable statute 
passed by the legislature. If a majority of them are 
grieved by the passage of some law, they may perhaps 
refuse to enforce its provisions or secure a repeal by 
petitioning the General Assembly, but they can never 
vote it out of existence. In this respect matters stand 
much as they did in Territorial days: when the pioneers 
asked for redress against their first Governor as a man 
“unfit to be the ruler of a free people,’’ Congress limited 
his veto and appointing powers. 54 


36 


APPLIED HISTORY 


While the voters have never been given an oppor¬ 
tunity to ask that an act of the General Assembly be 
referred to the people for their ratification or rejection, 
all the Constitutions of the State of Iowa have specified a 
few matters on which an obligatory or compulsory State¬ 
wide referendum vote should be taken. The instrument 
of 1844 declared there should he “no bank or hanking 
institution, or corporation with hanking privileges in this 
State, unless the charter with all its provisions, shall he 
submitted to a vote of the people at a general election for 
State officers, and receive a majority of the votes of the 
qualified electors of this State, cast for and against it.” 
And the Constitutions of 1844 and 1846 both required the 
General Assembly to publish and submit to the people 
any law which would put the State in debt to an extent 
exceeding $100,000. 

The present Constitution of Iowa calls for a State¬ 
wide referendum on two matters: the incurring of State 
indebtedness in a sum exceeding $250,000 is prohibited 
except by a majority vote of the people; and the enact¬ 
ment of a statute authorizing or creating corporations or 
associations with banking powers is forbidden, as well as 
amendments thereto, unless the electors record their ap¬ 
proval within three months after the passage of the act. 
In accordance with the requirements relative to banks the 
General Assembly in 1858 passed two statutes: one to in¬ 
corporate the State Bank of Iowa and another author¬ 
izing general banking in the State. Both acts were 
referred to the electors and both were approved by a 
majority. In 1860 the latter was amended by the General 
Assembly, but the people refused to accede to the amend¬ 
ment. 55 

It was during the operation of the Constitution of 


DIRECT LEGISLATION IN IOWA 


37 


1846 that the General Assembly attempted to confer npon 
the people a power not covered by the reservations above 
noted. The result was an important decision by the State 
Supreme Court. 

In the winter of 1850-1851 there were widely circu¬ 
lated and signed throughout the State petitions calling 
upon the General Assembly to enact a law prohibiting the 
sale of liquor — some even asking that it be submitted to 
the people for their approval. Not until January, 1855, 
did the legislature pass an act for the suppression of in¬ 
temperance, providing among other things that the 
question of prohibiting the sale and manufacture of in¬ 
toxicating liquor should be submitted to the legal voters 
of the State in April, and if a majority of them voted for 
the law, it should take effect on July 1, 1855. 56 

In a case involving the application of this law, Santo 
vs . The State, the Supreme Court of Iowa decided that 
the statute became effective on July 1, 1855, despite the 
popular majority for it, and that not even an adverse vote 
of the people would have suspended its operation. The 
justices, only one dissenting, declared that the General 
Assembly could not legally submit to the people the prop¬ 
osition whether an act should become law or not, and 
“the people have no power, in their primary or individual 
capacity, to make laws. ’* In other words, the legislature 
could not constitutionally delegate its legislative power to 
any body, and therefore only that part of the act which 
called for a popular vote was null and void, while the 
remainder was a complete and valid act. Chief Justice 
Wright disagreed with his brethren in rejecting only the 
part which he declared vitalized the whole act. He be¬ 
lieved that the people’s vote was intended to breathe life 
into this law in violation of the spirit of a constitutional 


38 


APPLIED HISTORY 


government, however beneficent the legislature’s design 
to suppress intemperance, pauperism, and crime. Mem¬ 
bers of tbe General Assembly, be declared, are supposed 
to be cbosen for tbeir wisdom, integrity, experience, and 
fitness to enact legislation, and can not lodge tbeir power 
in tbeir constituents. 57 

It is tbe decision in tbe case of Santo vs. The State 
wbicb prevents tbe General Assembly of Iowa from sub¬ 
mitting measures to tbe electorate of tbe entire State for 
approval or rejection. Moreover, tbe weight of authority 
in tbe United States accords with this decision. 58 It is 
not so important, however, that tbe legislature shall have 
tbe option of submitting measures to tbe people as that 
tbe people shall have tbe right to call for a vote upon an 
act passed by tbe legislature. This, indeed, is tbe idea 
wbicb lies at tbe bottom of tbe present agitation in tbe 
United States for tbe adoption of amendments to State 
constitutions establishing tbe initiative and referendum. 

THE PROPOSED STATE-WIDE INITIATIVE AND REFERENDUM 

As long ago as 1892 a member of tbe State Senate 
introduced a resolution to amend tbe Constitution of 
Iowa allowing tbe General Assembly to submit any act to 
a vote of tbe qualified electors at a general or special 
election, tbe act to take effect only when tbe voters cast a 
majority in its favor. Tbe committee to wbicb this pro¬ 
posal was referred recommended its passage but tbe 
Senators voted it down. 

A member of tbe House of Representatives in 1898 
was supported by tbe Committee on Constitutional 
Amendments in tbe wish to vest legislative authority in 
tbe General Assembly and to reserve to tbe people tbe 
right and authority, in manner and form provided by law, 


DIRECT LEGISLATION IN IOWA 


39 


to propose matters for legislation and to require that 
such measures he referred to a vote of the electors of the 
State. The amendment further provided that two-fifths 
of the members of each house might file a demand that 
any measure passed by the General Assembly should he 
referred to the people. This proposal, however, found 
little favor with the legislature. 

On April 1, 1904, the Clinton County members of the 
General Assembly introduced a joint resolution which 
embodied an amendment to the Constitution to provide 
for direct legislation. Initiative petitions containing the 
full text of proposed laws were to be signed by at least 
five percent of the legal voters of the State. Laws passed 
by the General Assembly were to be submitted to a refer¬ 
endum either upon the petition of five percent of the 
voters or upon the demand of twenty-five percent of the 
members of the legislature on joint ballot. The proposed 
amendment contained other provisions, but as in the case 
of its successor, which came before the House of Repre¬ 
sentatives in 1906 in very condensed form, the legislative 
committees did not hesitate to recommend indefinite post¬ 
ponement, and in each year their report was adopted. 59 

Thus the forward movement for a State-wide system 
of direct legislation in Iowa began at least ten years ago. 
The Prohibition Party assembled in State convention in 
1904 inserted the following plank in its platform: “To 
guard against corrupt legislators and class legislation, 
that so often thwart the will of the people, we declare for 
the initiative and referendum system of government.’ ’ 
In 1906 the Prohibitionists reiterated their belief in the 
new system, and found support in the State platforms of 
the People’s and the Socialist parties. Two years later 
the Prohibitionists declared: “We favor the referendum, 


40 


APPLIED HISTORY 


initiative and recall privilege now granted to certain 
cities by tbe last general assembly and recommend that 
the same privilege extend to the entire state. ’’ 

In 1910 the Democrats adopted the following plank as 
a part of their State platform: *‘We believe in the prin¬ 
ciple of the Initiative and Referendum and Recall, and we 
favor legislation putting the same into force.’’ But the 
Republican State convention of the same year gave no 
heed to Senator Cummins’s statement that ‘ 4 the govern¬ 
ment is for the people, and not the people for the gov¬ 
ernment, and there are times when to secure reforms 
essential to their welfare they should have the right to 
initiate, approve, or disapprove legislation which touches 
fundamentally their welfare.” 

In 1911 Mr. David E. Kulp (Republican) introduced 
into the House of Representatives a joint resolution pro¬ 
posing to amend the Constitution so as to provide for 
direct legislation. The committee on constitutional 
amendments recommended that the resolution pass, but 
on the floor of the House it was defeated by a vote of 58 
to 42. 60 

Again in 1912 Prohibitionists, Socialists, and Demo¬ 
crats endorsed the principle of the initiative and refer¬ 
endum, the Democrats recognizing in it ‘ ‘ the best method 
by which the question of woman suffrage and other re¬ 
forms may be submitted to the people. ’ ’ The Progressive 
Party also asserted its belief in the idea, as did the Re¬ 
publican Party in a State convention held about two 
weeks before the conventions of both the Progressives 
and the Democrats. Such, then, was the unanimity of 
parties in the State that early in 1913 the Thirty-fifth 
General Assembly by overwhelming votes in both houses 
adopted Mr. Kulp’s resolution. 61 


DIRECT LEGISLATION IN IOWA 


41 


The main features of the proposed constitutional 
amendment may now properly he reviewed. According 
to its provisions the legislative authority of the State 
shall he vested in the General Assembly, “the people 
reserving unto themselves the right and power to propose 
laws, to enact, approve or reject the same at the polls, and 
. . . . to approve or reject any item, section or part 

of any act enacted by the general assembly”; but such 
right shall not extend or apply to an act i 1 relating to the 
preservation of the public peace, public health or appro¬ 
priations for the support and maintenance of the depart¬ 
ment of state and state institutions.” 62 

The number of persons required to call for the refer¬ 
endum of an act (until fixed by the General Assembly 
somewhere between ten and twenty percent) shall be 
fifteen percent of the qualified electors of each of the con¬ 
gressional districts 63 who voted for Secretary of State at 
the last preceding election. These electors shall file their 
petition for a referendum with the Secretary of State 
within ninety days from the final adjournment of the 
General Assembly which passed the act or part of an act 
to be referred. Measures shall be referred to the people 
at regular biennial elections and shall be in full force until 
rejected by the people. 

Subject to the same constitutional limitations as the 
General Assembly, the people shall be permitted to enact 
a law proposed by fifteen percent (until fixed by General 
Assembly somewhere between twelve and twenty-two 
percent) of the qualified electors of each of the congres¬ 
sional districts. They may also initiate amendments to 
the Constitution. The full text and title of the proposed 
bill or amendment shall be filed with the Secretary of 
State not less than one hundred and fifty days before the 


42 


APPLIED HISTORY 


general election, and this officer shall submit the bill to 
the Supreme Court for its opinion as to constitutionality. 

Ninety days before election the Secretary of State 
shall mail to the county auditors for distribution to each 
voter a pamphlet containing a full text, with arguments 
for and against, of all measures to be voted on. A ma¬ 
jority of the votes cast on any measure shall be necessary 
to its adoption or rejection. Within thirty days after the 
vote has been canvassed the Governor shall declare the 
results of the election. Where conflicting measures are 
approved by the people, that receiving the highest vote 
shall prevail. All measures shall take effect upon the 
Governor’s proclamation, except that two affirmative 
votes at two successive biennial elections are made neces¬ 
sary to the adoption of a constitutional amendment. 64 

Such, briefly summarized, is the proposed constitu¬ 
tional amendment providing for the initiative and refer¬ 
endum in Iowa. If it is agreed to by the Thirty-sixth 
General Assembly and approved and ratified by a ma¬ 
jority of the qualified electors voting thereon it will 
become a part of the fundamental law of the State of 
Iowa. 65 


Ill 


THE CASE FOR AND AGAINST DIRECT 
LEGISLATION 

All of the standard arguments on the initiative and 
referendum have undergone so much discussion, both 
popular and academic, that little more need be done here 
than summarize them and refer to some of their chief 
exponents. Two considerable classes of persons may he 
said to oppose direct legislation: those who “profess 
belief in government by the people, hut have some 
misgivings about the practical results of applied democ¬ 
racy^, and those who believe in ‘‘ government by gentle¬ 
men^. 66 Neither class has been idle in sounding the 
alarm against the spread of the new system. 

ARGUMENTS AGAINST THE INITIATIVE AND REFERENDUM 

Opponents of direct legislation would improve hut not 
change the present machinery of representative govern¬ 
ment in a belief that what legislators will do for the 
masses is more to be desired than what the masses them¬ 
selves demand: they believe that the welfare of the peo¬ 
ple, like that of children, is best promoted in the long run 
by persons of maturer and more experienced minds. If 
legislators show a lack of experience and even misconduct 
themselves, are not these evils of the plain people’s own 
making? Why not reduce the length of the ballot and 
enable the voters to know not only the personal character 
and ability hut, more important, the political opinions of 


43 


44 


APPLIED HISTORY 


their candidates for the legislature? And why not im¬ 
prove the conditions under which the legislature works? 
The big fact productive of so many political evils is that 
from top to bottom our American system has been want¬ 
ing in civic and official responsibility and lacking in 
capable leadership. 67 

In State government, it is asserted, there has existed 
a woeful absence of political issues: it is time that candi¬ 
dates should seek election to the legislature on a few 
definite issues. English methods and practices are cited 
with approval. The people of England, it is said, keep 
their fingers upon the pulse of Parliament, and candidates 
for Parliament always come to them with proposed meas¬ 
ures and policies. If the leaders of the majority in the 
House of Commons are prevented by adverse votes from 
carrying out their pledges to the people, Parliament is 
dissolved, a new election is held, and the people’s man¬ 
date is obtained. Such a referendum works where there 
is an enlightened, alert public opinion and recognized 
responsible leadership. 

Is there any real reason why the same sort of system 
could not be developed in our American States, unless it 
be that the voters do not know what they want and have 
no leaders to tell them? What have national politics to 
do with State policy? Why should the advocates of na¬ 
tional policies be elected to State offices by voters whose 
national party affiliations happen to be the same? The 
State’s field of action, its policies, problems, and needs 
are big enough to admit of the existence of well-defined 
State parties: the absence of a real, constant line of 
cleavage has been and is due to a dearth of men who are 
able to crystallize public opinion. 

Opponents of the initiative and referendum believe 


DIRECT LEGISLATION IN IOWA 


45 


that if the new system is mainly due to the corruption of 
legislatures by bosses and corporations, this condition 
was made possible by “the sluggishness of the people.” 68 
It is not these new institutions that will bring the millen¬ 
nium in government and cure the abuses of power: rather 
will popular government succeed when the idea of ‘ 1 effec¬ 
tive responsibility for the performance of tasks imposed” 
becomes established. It has been said that the demo¬ 
cratic mistake in America is “making officers responsible 
through the ballot. ’ ’ Should not Americans discard this 
practice and secure answerability by fixity of tenure as in 
private business, discharging a servant only for failure 
to do his duty faithfully? And if we can not have the 
English or Canadian way of obtaining responsibility, how 
can we obtain a permanently aroused public and an awak¬ 
ened social conscience? To this many persons reply: “A 
short ballot will lessen the electoral duties of the people 
and secure their general attention at moderate intervals 
for concentrated and effective action.” 69 

If State legislatures are not better, to what is this due 
if not to the voters’ ignorance ? To be sure, opponents of 
direct legislation realize that representatives too often 
show a tendency to play politics, they stoop to log-rolling, 
and even fall before the pressure of local and private 
interests. But can we not select some impartial body of 
men to consider local and private bills and let the legis¬ 
lators give their time to the larger affairs of public pol¬ 
icy? 70 Under the American system “with all its furious 
voting” the legislative candidate knows his election will 
not be obtained so much by policies and issues and general 
efficiency as by the efforts of workers at the polls and the 
canvassing of voters before election. The advocates of 
the old system feel certain that what is desired from the 


46 


APPLIED HISTORY 


voters to-day is intelligence, in place of the fatalism on 
which men have ridden into power for long years past. 

And now, in view of what is called the prevailing 
political blindness of the masses, shall we also entrust the 
enactment of legislation to them? Is not the average 
man, busy with the ordinary affairs of life, already too 
overloaded and confused to give important measures the 
consideration which they merit? Lack of time, experi¬ 
ence, and interest preclude the necessary investigation of 
measures in advance, even though the State distributes 
to each voter a booklet of measures and arguments. And 
so the opponents of direct legislation say, let the voter 
cast his ballot for the candidate whose views and legis¬ 
lative program are known: by all means save the voter 
from going to the polls to face a ballot encumbered with 
texts and titles of proposed or referred laws, feet wide 
and yards long, thirty and forty at one time. 

The system, declares Mr. Taft, which makes such a 
ballot possible is a ‘ 4 travesty upon practical methods of 
ascertaining the deliberate will of the people either in 
legislation or in the selection of candidates. ” If we want 
better legislation, let us not begin at the wrong end and 
call upon a hasty and superficial electorate: let us first 
elect better representatives and the need of direct legis¬ 
lation by the people will soon enough pass away. 71 

Such in brief are perhaps the strongest arguments put 
forward in opposition to direct legislation. Besides, it is 
feared that the initiative will destroy the constitutional 
stability guaranteed by the American system of checks 
and balances, in the complexity of which there is thought 
to be great virtue. The advocates of representative gov¬ 
ernment would prohibit the sovereign people from touch¬ 
ing as seldom as possible the constitutions which they 


DIRECT LEGISLATION IN IOWA 


47 


themselves have created — as if these instruments were 
already well-nigh perfect. Some, indeed, are opposed to 
the initiative because they believe that it will foster the 
tyranny of the majority and end in revolutionary violence 
involving perhaps the destruction of individual and 
property rights and finally the State itself. 72 

Furthermore, these same persons believe that the in¬ 
itiative will tend to subvert the power of judges to inter¬ 
pret the laws and lead to the entire loss of the distinction 
between constitutions and statutes to the hopeless con¬ 
fusion of our legal system. 78 They prophesy that legis¬ 
lation will be badly and unscientifically drafted, the 
product of the clamor of the moment, of passions and 
emotions, and of popular whim and impulse — the snap 
judgments and emotional enactments of the inconstant 
numerical majority. 74 Moreover, the initiative will also 
be used by special interests to get the better of the people, 
for under normal conditions “the politically ignorant 
voter will get his advice how to vote on measures just*as 
on men from the men who have always been directing 
people how to vote.” 75 

Against the referendum the objection is offered that 
it interferes with the orderly performance of govern¬ 
mental functions, and also affords the legislator an excuse 
for shirking responsibility. 76 It gives him a chance to 
dodge issues and reduces the amount of public pressure 
brought to bear upon him in view of anticipated legisla¬ 
tive action. The Oregon legislator, it is declared, feels 
that his work is somewhat of secondary importance and 
that any question in which the public is intensely inter¬ 
ested he had best allow the people to decide at the polls, 
thus avoiding the risk of incurring undue popularity by 
favoring one side or the other. The voter, secure in the 


48 


APPLIED HISTORY 


possession of the initiative, now takes less interest in 
what his representative does. 77 

In the eyes of the opponents of the referendum, ma¬ 
jority rule is to be shunned as a pest destructive of the 
republican form of government; it involves the furor and 
expense of frequent elections; and it lays too heavy a 
burden upon the time and intelligence of the electorate. 
In local government voting “yes” or “no” on such sim¬ 
ple and easily understood questions as local option, bonds, 
and franchises is quite different from voting on long, 
complicated bills of State-wide application, 78 and the ex¬ 
perience of Oregon shows that the voters lag behind the 
best thought on matters of economic importance. 79 

The most frequent stricture upon the initiative and 
referendum is that the minority imposes laws upon the 
majority. 80 Popular votes in all the States upon such 
important matters as constitutional amendments are 
cited, and attention is called to the fact that the total vote 
on legislative enactments varies from seventy-five to 
twenty-five percent of the votes cast for candidates at the 
same election. To quote the words of one writer: “The 
vote was an expression of opinion, not on the merits of 
the measures themselves, but on the popular incompe¬ 
tence to decide them, and on the principle that such 
measures ought not to be proposed in this way.” 81 The 
recommendation of another opponent of direct legislation 
may be repeated in concluding this summary of argu¬ 
ments against the new institutions. Says Mr. Taft: 

Let the movement in favor of purer and better government go 
on. Let it disclose itself in the effective attention to the election 
of our representatives in executive and legislative offices, and to 
the holding of them to strict responsibility. But let us not, with 
a confession that we, the people, are incapable of selecting honest 


DIRECT LEGISLATION IN IOWA 


49 


representatives, assume the still more difficult office and duty of 
directly discharging the delicate functions of government by the 
hasty action of a necessarily uninformed majority of the elec¬ 
torate, or, what is more likely, by a minority of an electorate, a 
majority of which declines to take part in the government 
through disgust at the impractical and unwise burdens that are 
sought to be thrown upon them . 82 

ARGUMENTS FOR THE INITIATIVE AND REFERENDUM 

The tendency of the times is so distinctly towards 
making the experiment and the champions of direct legis¬ 
lation have gained ground so rapidly of late years that 
the arguments for the initiative and referendum deserve 
careful consideration. The short experience of Oregon 
and other States, declare the advocates of the new sys¬ 
tem, is more convincing and satisfactory than any theo¬ 
ries, however well established. 83 

The initiative results in the drafting of new laws by 
those who wish them to succeed: the latest opinion is that 
“in all that pertains to the technique of draftsmanship, 
legislation passed under the initiative is markedly supe¬ 
rior to the average of the statutes passed by the legis¬ 
lature.’ J The men who frame a bill scrutinize their work 
closely, knowing that their measure “once launched must 
go as it is, for better or for worse.” Furthermore, the 
referendum has made the legislator somewhat more care¬ 
ful of the form of the measure which he introduces, know¬ 
ing that if it should ever be referred to the voters, it will 
succeed if its meaning is clear. 84 

The initiative enables the sovereign people to register 
their will without the consent of the legislature, especially 
in obtaining amendments to the Constitution which have 
always had difficulty in running the gauntlet prescribed 


4 


50 


APPLIED HISTORY 


in the different States. The legislature’s obstructive 
tactics can now be avoided. The objection that in this 
way the fundamental distinction between Constitution 
and ordinary statutes will be destroyed is not nearly so 
formidable as many American writers and statesmen 
would have us believe, because the distinction between 
them is really very hard to determine. 85 

In England where Parliament as sovereign can do 
practically anything it pleases, people waste no breath 
debating whether an action is constitutional or not: in 
fact they have no such word as “constitutionality” in 
their vocabulary. To be sure, if Parliament undertakes 
to strike at the root of a matter, to make some funda¬ 
mental change, it goes to the people for a mandate, as 
was the case when Parliament recently curtailed the veto 
power of the House of Lords. Indeed, reformers in 
America maintain that the initiative will enable the peo¬ 
ple to brush away those useless agencies of government 
which have accumulated in so many Commonwealths. To 
those who contend that the State is “essentially munic¬ 
ipal in character” the way now lies clear for the complete 
reorganization of State government through the initi¬ 
ative and referendum. To the conservatives who are 
startled by this scheme of reform, the reformers reply 
that Americans can run any constitution. 86 

In States where the legislature has fallen into the 
hands of city interests or big business or a few corrupt, 
selfish, and often ignorant boss politicians, the referen¬ 
dum removes the temptation of the people’s representa¬ 
tives to bestow special privileges. 87 As President Wilson 
declares: “You know there is temptation in loneliness 
and secrecy. . . . Publicity is one of the purifying 

elements of politics.” 88 The referendum is a weapon 


DIRECT LEGISLATION IN IOWA 


51 


which causes the legislature at all times to take the people 
into its own confidence. 

Statutes providing for such large objects as work¬ 
men^ compensation and the regulation of public utilities 
by State commissions concern the people much more than 
most constitutional amendments: if commercial domina¬ 
tion stands in the way of social legislation, the initiative 
and referendum “ provide means of political action apart 
from those controlled by special interests and free from 
the secret entanglements of the legislative committee 
system.” 89 For a long time, declare the advocates of the 
new movement, the cry of 11 individual rights’ ’ was the 
key-note of representative government in England and 
America — to-day the idea of social justice is more and 
more coming to be emphasized. Lawyers and laymen 
alike are beginning to see that individual liberty in the 
modern world deserves to be protected only so long as it 
does not conflict with the welfare of the community; and 
in the opinion of Chief Justice Winslow of Wisconsin 
nothing at present can bring on the era of social justice 
so rapidly as can the initiative and referendum intelli¬ 
gently exercised by the voters. 

President Wilson who believes in these newer institu¬ 
tional forms of democracy declares that the processes of 
our politics 4 ‘ have been too secret, too complicated, too 
roundabout’ ’. He recommends the substitution of public 
for private machinery, because there have been too many 
private conferences and secret understandings and too 
much control of legislation by men who are not legis¬ 
lators, who stand outside and dictate and so obscure a 
bill’s history: “the very fact that so much in politics is 
done in the dark, behind closed doors, promotes sus¬ 
picion.” The President’s experience as Governor of 


52 


APPLIED HISTORY 


New Jersey may properly be set forth in full as a prac¬ 
tical demonstration of the need of the initiative and ref¬ 
erendum. Speaking of the connection between the 
political machine and big business, he asserts: 

But, unfortunately, the whole process of law-making in 
America is a very obscure one. There is no highway of legisla¬ 
tion, but there are many byways. Parties are not organized in 
such a way in our legislatures as to make any one group of men 
avowedly responsible for the course of legislation. The whole 
process of discussion, if any discussion at all takes place, is 
private and shut away from public scrutiny and knowledge. 
There are so many circles within circles, there are so many in¬ 
direct and private ways of getting at legislative action, that our 
communities are constantly uneasy during legislative sessions. 
It is this confusion and obscurity and privacy of our legislative 
method that gives the political machine its opportunity. There 
is no publicly responsible man or group of men who are known to 
formulate legislation and to take charge of it from the time of its 
introduction until the time of its enactment. . . . 

I am striving to indicate my belief that our legislative meth¬ 
ods may well be reformed in the direction of giving more open 
publicity to every act, in the direction of setting up some form of 
responsible leadership on the floor of our legislative halls so that 
the people may know who is back of every bill and back of the 
opposition to it, and so that it may be dealt with in the open 
chamber rather than in the committee room. The light must be 
let in on all processes of law-making. . . . 

Such a scheme of government by private understanding de¬ 
prives you of representation, deprives the people of representa¬ 
tive institutions. It has got to be put into the heads of legislators 
that public business is public business. I hold the opinion that 
there can be no confidences as against the people with respect to 
their government, and that it is the duty of every public officer 
to explain to his fellow-citizens whenever he gets a chance,— 
explain exactly what is going on inside of his own office. 90 


DIRECT LEGISLATION IN IOWA 


53 


Majority rule, that is, the responsibility of public ser¬ 
vants to the sovereign people who select them — in short, 
republican government — is rapidly coming to be a real¬ 
ity. Where the initiative and referendum exist, it is 
believed there will be a growing tendency for legislators 
and candidates for the legislature to stand for simple 
political issues, realizing that in this way they can best 
show their feeling of accountability to their constituents. 
Even where a candidate may be personally desirable and 
yet differ from the popular will on some matters of 
policy, the initiative and referendum enable the voters to 
elect their man and afterwards separate the issues on 
which he is elected, which is, in fact, the chief reason for 
the existence of the referendum in Switzerland. 91 Parties 
and political organizations will adapt themselves to the 
needs of the time: what the time needs is leaders but, 
most of all, issues. If we are to have party politics in 
State government it is time we find a line of cleavage 
other than that now existing on national questions which 
certainly have no place in the management of a State’s 
business affairs. 

Those who assert that the new ideas are an attempt 
to uproot, overturn, or destroy representative govern¬ 
ment are very much mistaken: the initiative and refer¬ 
endum are designed to remove defects, to supplement and 
perfect representative government. 92 The people are 
tired of a government that represents somebody else: 
they know that the theory of representative government 
is good, but also that in practice it is often bad. In 1910 
when Oregon’s voters spoke on thirty-two measures, 
eighteen were initiated bills “wholly because our legis¬ 
lative assembly in times past has failed or refused to do 
its duty, or refused to heed the people’s vote for progres¬ 
sive measures.” 


54 


APPLIED HISTORY 


Advocates of the initiative and referendum call these 
instruments “the sword of Damocles”, or “the gun be¬ 
hind the door”, which makes the voters feel secure and 
elicits respect from the legislature. They are not merely 
“a cure for legislative rascality, but chiefly a preven¬ 
tive”, to be resorted to at unusual times. The referen¬ 
dum is not to be used on all statutes enacted by the 
legislature, but only on demand of the voters to insure 
just laws and prevent corrupt measures, thus bringing 
the voters and their representatives into partnership re¬ 
lations. Indeed, on account of the growing irresponsi¬ 
bility and unresponsiveness of legislators the new system 
is held to be an absolute necessity. 93 

But the most important of all the arguments for the 
initiative and referendum is the way in which these insti¬ 
tutions affect the voters: they appear to utilize the indi¬ 
vidual in politics as never before. Direct legislation has 
been called ‘ 4 the greatest plan ever devised to encourage 
patriotic activity, and bring to the service of the state the 
brains of the commonwealth.” 94 Experience in Switzer¬ 
land shows that majority rule is “a bulwark of conserva¬ 
tism”, while it educates citizenship to a sense of civic 
responsibility and leads to general participation in public 
affairs. 96 In Oregon, voters, teachers, and pupils in the 
public schools pay more and more attention to measures 
about to be submitted at the polls. A student of Oregon 
conditions observes that political science is more nearly 
popular and better understood among the ordinary run 
of people there than anywhere else in the United States. 96 
Such a State is not so likely to become the victim of 
political apathy because the people are better informed 
and more watchful of public affairs. Says Mr. Richard 
Montague: 


DIRECT LEGISLATION IN IOWA 


55 


Clearly the voters of Oregon take a considerable interest in 
the exercise of the franchise, which is increasing as the impor¬ 
tance of their determinations becomes manifest. For some time 
before an election discussion of measures to be voted on is rife on 
the street, in conversation among friends, everywhere. It is part 
of the regular program in grange halls and labor union councils, 
and to some extent in clubs and associations of every sort. The 
newspapers are full of it. The pamphlets published by the state 
and distributed to every voter, wherein arguments pro and con 
are set forth, are seen almost like autumn leaves in Vallombrosa. 
The discussion even invades those circles where the ‘tired busi¬ 
ness man’ myth, and the indifference of the ordinary successful 
American to everything but putting money in his purse and 
spending it, combine against it. 97 

The claim, then, that the initiative and referendum 
prevent deliberation is said to he clearly wrong. Indeed, 
the Oregon voter has many months in which to acquaint 
himself with the nature of measures submitted for his 
consideration — more time than he has for familiarizing 
himself with the candidates for State and national of¬ 
fices. There is no haste at all under the new regime: it 
has even been called the most deliberative of all our 
governmental processes, for initiated bills are deliber¬ 
ately drafted to insure clearness and success; petitions 
are circulated and generally deliberately signed by the 
required percentage of voters; and measures are then 
printed with arguments and sent to each voter months 
before the election at which their fate will be decided. 
Indeed, the idea of being responsible for each law placed 
upon the statute book appeals more to the voter’s imag¬ 
ination than voting for the proper representative: the 
Oregon system is therefore the greatest school of political 
thought in the country. With a little original, independ¬ 
ent thinking the voter can more easily determine whether 


56 


APPLIED HISTORY 


the general purpose and intent of a measure is acceptable 
than whether a candidate’s professions are genuine. To 
quote Mr. Montague again: 98 

The educative effect of the discussion of a matter of public 
interest, generally participated in, with audience for everybody 
who has anything to say and with everybody who cares to think 
about it having a voice in the result, followed by a sound decision, 
simply cannot be exaggerated. It removes the ultimate ground 
of complaint from the mouth of discontent and brings the respon¬ 
sibility for the state of law home to the will and intelligence of 
every voter. 

Have the voters of Oregon and Switzerland voted in¬ 
telligently and conservatively? Champions of direct 
legislation point to the record: long ballots do not seem to 
have bewildered the voters, and thus far revolutionary 
measures have not been enacted. Switzerland has come 
to be called a conservative democracy, and Oregon statis¬ 
tics “give evidence of that patience and conservatism 
which Dr. Eliot predicates of democracy in America.” 99 
What the people of the initiative and referendum States 
have done can best be gathered from consulting the stat¬ 
utes enacted by them in recent years: it is a record which 
justifies itself. 100 

The fact that usually a smaller vote is cast for meas¬ 
ures than for candidates is urged as an evidence of 
“minority rule”. The reformers explain that the small¬ 
ness of the vote does not necessarily indicate lack of 
interest but a high degree of intelligence on the part of 
the voters. Actual intelligence is now brought to bear 
upon measures and blind political affiliation still prevails 
in the voting upon candidates. Oregon voters are not 
now merely going through the motions of government. 
To be sure, in all the direct legislation States, of the one 


DIRECT LEGISLATION IN IOWA 


57 


hundred voters who cast their ballots for candidates, 
very often less than seventy-five express their opinions 
on hills; hut important measures of State-wide interest 
ordinarily receive a large vote and the result represents 
a real popular judgment. 

Compulsory voting is no solution of the problem of 
non-voting: advocates of the initiative and referendum 
cry out against dragging incompetents to the polls, and 
prefer to let the unintelligent, unfit, and uninterested 
voters entirely alone, because present conditions are all 
that could be desired, and “no practical bad results from 
the deficiency of the vote on measures have been pointed 
out”. The system of direct legislation is still in its in¬ 
fancy, hut the evils from which it is suffering are not 
inherent, so that with a few safeguards its future success 
seems assured. 101 


IV 


GENERAL STANDARDS OR CANONS OF 
CRITICISM 

To obtain a workable system of direct legislation much 
depends upon the provisions of the constitutional amend¬ 
ment and legislative enactments which support it. In 
many States so-called “jokers ’’ have crept in, and the 
people’s power is said to be hedged about by unjust safe¬ 
guards and restrictions. Despite the newness of the ma¬ 
chinery adopted for direct State-wide legislation, there 
are a few standards or principles which are now generally 
recognized and recommended by students and advocates 
of the initiative and referendum. These fundamentals of 
criticism may be summarized under nine heads: 102 

1. Where the constitutional amendment providing 
for the initiative and referendum permits the legislature 
to declare the urgency of an act so as to place it beyond 
the immediate reach of voters, such declaration should be 
made by at least a two-thirds majority of each house, and 
emergency measures should contain a “preamble briefly 
setting forth the facts constituting the alleged emergen¬ 
cy # ’ y 103 

2. Acts making appropriations for purposes author¬ 
ized by existing laws and acts for the immediate preser¬ 
vation of the public peace, health, or safety should be 
subject to the referendum petition; but, unlike other acts, 
not until an adverse vote of the people be rendered should 
they be suspended. Laws passed by the legislature 


58 


DIRECT LEGISLATION IN IOWA 


59 


should not go into operation for at least ninety days after 
the adjournment of the session so as to give the voters 
sufficient opportunity to prepare referendum petitions. 
Parts, sections, and items of statutes should likewise he 
open to objection. 

3. The right of initiative should apply to both 
statutes and constitutional amendments without discrim¬ 
ination or limitation of any sort. It should be possible to 
initiate a measure directly for submission to the voters 
as well as indirectly, the difference being that the legis¬ 
lature in the latter case has a chance to enact or reject 
the measure as proposed. Upon rejecting an initiated 
hill the legislature should he allowed to refer to the voters 
both the original and a competing measure. 104 

4. The number of signatures required for initiative 
petitions should he larger than that required for refer¬ 
endum petitions, the definite number plan being prefer¬ 
able to the percentage plan; but in no case should the 
number be put so high as to make the system difficult to 
operate; nor should petitions be required from a certain 
number of counties or congressional districts in the 
State. 105 

5. The State Supreme Court should be required to 
give its opinion on the constitutionality of bills initiated 
by the voters. 106 

6. The State should furnish each voter with a 
pamphlet containing the titles and texts of measures to be 
voted on at the pending election. Arguments for and 
against all measures should be included. 

7. The official ballot should not contain the full text 
of measures submitted but should merely state the pur¬ 
pose of each bill clearly and concisely. 

8. Measures should be voted on at regular State 


60 


APPLIED HISTORY 


elections; and at least one regular State election should 
intervene before resubmission, by petition, of the same 
measure. To take effect a measure should be approved 
by a majority of the voters voting thereon and not other¬ 
wise ; and in case two conflicting measures are approved 
the one receiving the highest vote should prevail. 107 

9. The Governor’s veto power should not extend to 
measures approved or enacted by the voters, nor should 
a measure so approved be amended or repealed by the 
legislature except by a three-fourths vote of all the mem¬ 
bers of each house or by a direct vote of the electors. 108 


NOTES AND REFERENCES 











NOTES AND REFERENCES 


1 Equity, Vol. X, p. 94. This quarterly, edited by Mr. C. F. Taylor, is 
devoted to scientific politics and progressive government, recording the ad¬ 
vance of the movement for direct legislation, proportional representation, 
and the short ballot. 

Wilson's The New Freedom, pp. 236, 237. 

2 Lowell's Public Opinion and Popular Government, pp. 169-173. 

s Lowell's Public Opinion and Popular Government, p. 173. 

4 Lowell's Public Opinion and Popular Government, pp. 164, 165, 199 

s Equity, Yol. XY, pp. 34-47; The American Year Boole, 1913, p. 69; 
The American Political Science Beview, Yol. VIII, pp. 251-253. 

6 The American Year Boole, 1913, p. 76; and the references in note 5 
above. 

7 Lowell's Public Opinion and Popular Government, pp. 174, 203. For 
the results of direct legislation in 1912, see Appendix B in Lowell's book. 

s So held in 38 Iowa 467, 84 Iowa 262, 137 Iowa 478, 479. 

» Laws of Iowa, 1868, p. 54; Laws of Iowa, 1876, p. 110; Laws of Iowa, 
1884, p. 164; Code Supplement of 1907, p. 468; Aurner's History of Town¬ 
ship Government in Iowa, pp. 43-45, 190. Mr. Aurner declares that “it is 
clearly shown in the voting of taxes in aid of railroad construction that the 
electors can not be trusted with complete freedom in such matters. . . . 

From what occurred it is clear that the taxpayer needed protection against 
himself, and the revision and repeal of laws which followed appear to have 
had that end in view. Initiative on the part of taxpayers may have been 
desirable; but hasty actions in the hope of possible advantages to the imme¬ 
diate community .... must have suggested further legislation which 
aimed to prevent a repetition of these occurrences, without taking away the 
privileges of the elector." 

See also Brindley's History of Taxation in Iowa, Vol. I, p. 276. 

10 Code of 1873, p. 334. 

11 Laws of Iowa, 1876, p. 150; Code Supplement of 1907, p. 668. 

12 Code of 1897, p. 952. 


63 


64 


APPLIED HISTORY 


13 Code of 1897, p. 263. 

14 A statute of 1872 enabled one-third of the voters of the township to 
force a popular vote upon the question of restraining stock from running at 
large. By a law of 1882 townships might vote aid in the construction of 
bridges, the estimated cost of which was not less than ten thousand dollars, 
— Aurner’s History of Township Government in Iowa, pp. 45, 52. 

is Code of 1851, p. 175. The original school law of 1847 has been modi¬ 
fied by later legislation.— See Revision of 1860, p. 360; Code of 1873, p. 
318; Code of 1897, pp. 933, 934. 

16 Code of 1897, p. 965. 

17 Constitution of Iowa, Article III, Section 30. 

is Aurner’s History of Township Government in Iowa, pp. 33, 36, 38. 

i» Laws of Iowa, 1846-1847, p. 62; The Iowa Journal of History and 
Politics, Yol. YI, p. 57. 

20 Code of 1851, pp. 23, 24; Code of 1873, p. 54; Code of 1897, p. 237. 

21 Code of 1851, p. 24; Code of 1897, p. 239. 

22 Code of 1851, p. 24; Laws of Iowa, 1874, pp. 91, 92; Code of 1897, 
p. 238. 

23 14 Iowa 230, 231. 

An act to protect crops against the invasion of stock was passed in 1868, 
its last section providing that the act should be in full force in every county 
where the voters, called upon by a majority of the board of supervisors, 
chose to take advantage of the provisions of the act. The Supreme Court 
followed Santo vs. The State (a case involving the application of a law 
calling for a State-wide referendum) and declared that in each case the law 
depended upon a popular vote for validity: since this was unconstitutional, 
the law was “of force without regard to the vote which it provides shall be 
taken to determine the question of its adoption by the people ”. Thus, the 
court saddled the people of Iowa with a law not made by the General As¬ 
sembly. The court was certainly not interpreting the legislature’s intention 
to establish local option in this matter. See Laws of Iowa, 1868, p. 204; 
and the case of Weir vs. Cram, 37 Iowa 652, 653. 

24 The language of the statute of 1857 was no doubt unfortunate, the 
last section providing that “all acts and parts of acts now in force, coming 
in conflict with the provisions of this act, are hereby repealed: Provided, 
That the act entitled ‘an act for the suppression of intemperance,’ ap¬ 
proved January 22d, 1855, be not and is not by this act repealed in any 
county of this State, unless the people of such county by a vote taken as 


DIRECT LEGISLATION IN IOWA 


65 


herein provided, shall adopt this act. ”— Laws of Iowa, 1856-1857, pp. 382, 
383. 

The use of the word “repeal” and of the expression “adopt this act”, 
in fact the wording of the whole section is loose, but the intention of the 
legislature is clear as day: a county referendum in favor of the question of 
“license” certainly would not “repeal” the prohibitory law which was 
State-wide, nor would the people thus adopt the new law, the language of 
the General Assembly to the contrary notwithstanding. The people’s action 
would abrogate the effect of the prohibitory law and thus virtually establish 
a system of local option. It may be that the justices in Geebrick vs. The 
State allowed their prejudices in favor of prohibition to get the better of 
their reasoning, as suggested in Oberholtzer’s The Referendum, Initiative, 
and Recall in America (2nd edition), p. 323. It must be admitted that the 
last section of the act of 1857, as stated above, is objectionable if it means 
that the people of a county or all the counties could elect to abrogate the 
effect of the prohibitory law of 1855 and thus forever cut off their right to 
return to it if they desired. 

25 Geebrick vs. The State, 5 Iowa 496, 499. 

26 The State vs. Weir, 33 Iowa 135. The statute of 1870 in the Laws of 
Iowa, 1870, p. 83, is also poorly drafted, and the court believed that it fell 
* 1 completely within the principles and reasoning of Geebrick vs. The State ’ ’, 
but the justices seem to have allowed precedent to lead them into error. 

27 Code Supplement of 1907, p. 534. 

28 For a discussion of the Iowa Supreme Court’s vacillating policy see 
Oberholtzer’s The Referendum, p. 322. Geebrick vs. The State seems to 
have been reversed in The State vs. Forkner, 94 Iowa 1, 16. 

29 94 Iowa 24, 26, 32, 33. 

30 Revision of 1860, p. 38; Code of 1897, p. 216. 

31 Revision of 1860, p. 51; Code of 1897, p. 231. ’ 

32 Laws of Iowa, 1870, p. 140; Code Supplement of 1907, p. 648. 

33 Laws of Iowa, 1870, p. 187; Code Supplement of 1907, p. 86. 

34 Laws of Iowa, 1886, p. 70; Code of 1897, p. 234. 

35 Laws of Iowa, 1890, p. 37; Code Supplement of 1907, p. 680. 

36 Code of 1851, pp. 103, 104, 105, 106, 107, 108. 

37 Laws of Iowa, 1866, p. 157; Laws of Iowa, 1868, pp. 78, 79; Code of 
1897, pp. 269, 270. 

38 Laws of Iowa, 1858, pp. 347, 349; Code of 1897, pp. 271, 272, 276, 278. 

5 


66 


APPLIED HISTORY 


39 Revision of 1860, p. 371; Code Supplement of 1907, p. 666. 

40 Laws of Iowa (Extra Session), 1862, p. 23; Code of 1897, p. 278. 

41 See above, footnote 9. 

42 Laws of Iowa, 1882, p. 123; Code of 1897, p. 360. 

43 Laws of Iowa, 1872, p. 18; Code of 1897, p. 305. 

44 The statute in the Code Supplement of 1907, p. 129, is a development 
of the idea contained in the Laws of Iowa, 1872, p. 80. See also Laws of 
Iowa, 1888, pp. 16, 31; Laws of Iowa, 1896, p. 23; Laws of Iowa, 1900, p. 
10; Laws of Iowa, 1909, p. 36. 

Electors in cities of the first class have a right to vote on the question 
whether a contract or contracts approved by the city council in relation to 
the purchase and construction of waterworks shall be adopted.— Code Sup¬ 
plement of 1907, p. 142. 

45 See references in footnote 44 above; Laws of Iowa, 1890, p. 19; Code 
Supplement of 1907, p. 199. 

46 Laws of Iowa, 1882, p. 63; Laws of Iowa, 1886, pp. 13, 119; Laws of 
Iowa, 1894, p. 33; Code of 1897, p. 323. 

47 Code Supplement of 1907, p. 159; Code of 1897, p. 329. The General 
Assembly in 1913 authorized the people of Waterloo to petition and author¬ 
ize the construction of a business men’s coliseum and convention hall over 
the Cedar River.— Laws of Iowa, 1913, p. 358. 

48 Code Supplement of 1907, pp. 218, 219; Laws of Iowa, 1909, pp. 53, 
58; Laws of Iowa, 1911, p. 37. 

The initiative was first invoked at Des Moines on the 7th of March, 1910. 
The proposition of municipal ownership of the street-car system was sub¬ 
mitted to the voters on March 28th. 

Resort to a popular vote in order to enact municipal law was held not to 
conflict with the provision of the Constitution vesting all legislative authority 
in the General Assembly since this constitutional provision has no application 
to the legislative power of city councils. Nor is the referendum destructive 
of republican government.— Eckerson vs. The City of Des Moines, 137 Iowa 
452, 482, 483, 484. 

49 Constitution of Iowa, Article I, Section 20. 

50 Constitution of Iowa, Article I, Section 2. 

si Shambaugh’s The Constitution of the State of Iowa (1902), pp. 12- 
15. For the early history of popular ratification in Iowa see Lobingier’s 
excellent work on The People’s Law, pp. 273-277. 

52 Eor the right of the voters to revise or amend their fundamental law 


DIRECT LEGISLATION IN IOWA 


67 


consult the Constitutions of Iowa in Shambaugh’s Documentary Material 
Delating to the History of Iowa, Yol. I, pp. 135-272; or Horack’s Constitu¬ 
tional Amendments in Iowa in the Iowa Historical Decord, Yol. XV, No. 2, 
pp. 452, 454-464. 

6 3 Iowa Historical Decord, Yol. XV, No. 2, pp. 472-475; Shambaugh’s 
The Constitution of the State of Iowa (1902), pp. 15—17. For a discussion 
of proposed constitutional amendments in Iowa see the writer’s articles in 
The Iowa Journal of History and Politics, Vol. VII, pp. 266-283, Vol. VIII, 
pp. 171-210. 

54 Horack’s The Government of Iowa (1911), p. 28. 

55 Laws of Iowa, 1858, pp. 125, 215; Laws of Iowa, 1860, p. 97; Devision 
of 1860, pp. 269, 281. 

56 The vote was 25,000 for and 22,000 against the law. See The Iowa 
Journal of History and Politics, Yol. YI, pp. 63, 73, 78, 79. 

57 Santo vs. The State, 2 Iowa 165, 203, 224, 228, 229. 

58 Willoughby’s The Constitutional Law of the United States, Vol. II, 
p. 1325. 

59 See the writer’s article on proposed constitutional amendments in The 
Iowa Journal of History and Politics, Yol. VIII, pp. 197-199. 

For State party platforms see the Iowa Official Degister for the years 
1907 to 1914. See also Equity, Yol. XII, p. 150, Yol. XIII, p. 25. 

go House Journal, 1911, pp. 281, 413, 498, 501. 

6 1 Equity, Yol. XIII, p. 75, Yol. XIY, pp. 106, 143. For a skeleton his¬ 
tory of the amendment see House Journal, 1913, p. 2956; and Senate Jour¬ 
nal, 1913, p. 2734. The amendment as originally introduced contained 
provision for reserving to the legal voters of every city, town, and munici¬ 
pality initiative and referendum powers as 1 ‘ to all local, special and 
municipal legislation of every character in and for their respective munici¬ 
palities.”— House Journal, 1913, p. 191. 

62 The original amendment also contained the words 11 public safety ’ ’.— 
See House Journal, 1913, p. 190. 

63 An amendment to the original resolution to reduce the number was 
defeated, and an amendment to insert ‘ 1 Congressional Districts ’ ’ was 
adopted.— See House Journal, 1913, pp. 876, 1408, 1409. 

64 Mr. Kulp’s resolution made the initiative and referendum on constitu¬ 
tional amendments the same as on ordinary statutes.— See House Journal, 
1913, pp. 475, 1411. 

At the present time it takes the people of Iowa at least three years to 
amend their Constitution. 


68 


APPLIED HISTORY 


65 Laws of Iowa, 1913, pp. 423-425. 

66 The Annals of the American Academy of Political and Social Science, 
Yol. XL III, p. 144. 

Read Wilson’s The New Freedom, pp. 55-78, 242, on the influence of 
“gentlemen” or “aristocrats” in American government. 

67Lowell’s Public Opinion and Popular Government, p. 143. President 
Wilson in The New Freedom, pp. 123, 124, declares: “ I think it will become 

more and more obvious that the way to purify our politics is to simplify 

them, and that the way to simplify them is to establish responsible leader¬ 
ship. We now have no leadership at all inside our legislative bodies,— at 

any rate, no leadership which is definite enough to attract the attention and 
watchfulness of the country.” On the people’s part there is a growing de¬ 
mand ‘ ‘ for responsible leadership, for putting in authority those whom they 
know and whom they can watch and whom they can constantly hold to 
account. ’ ’ 

For a good discussion of the citizen’s responsibility, see North American 
Beview, Yol. CXCYIII, pp. 149-153. 

68 Taft’s Popular Government, pp. 38, 39. 

69 Taft’s Popular Government, pp. 40, 41. 

70 Lowell’s Public Opinion and Popular Government, pp. 131-135, 145. 

71 Kales’s Unpopular Government, pp. 19, 21, 37, 39, 40, 42, 48, 120, 121. 
Mr. Taft in his Popular Government, pp. 21, 49, 52, 53, urges .lightening the 
voter’s burden so as not to discourage his political activity. See also The 
Political Science Quarterly, Yol. XXIII, pp. 597, 598. 

72 Taft’s Popular Government, pp. 68, 70. 

73 Proceedings of the American Political Science Association, 1913, p. 153. 

74 For all these expressions as used by such writers as William H. Taft, 
Nicholas M. Butler, A. Lawrence Lowell, Ellis P. Oberholtzer, Charles M. 
Hollingsworth, Henry C. Lodge, Governor O’Neal of Alabama, and Con¬ 
gressmen McCall and Sutherland, see their writings or Equity, Yol. XIY, pp. 
58-70. 

Members of the legal profession still cling tenaciously to the doctrine of 
innate or natural rights which places in theory a limit upon the despotism 
of the majority. Accordingly, they declare that if the so-called sovereign 
people are permitted to pass whatever laws they please, unrestrained by any 
power, human or divine, legislation will become an expression of the popular 
will for the time being, whereas law at all times should be an expression of 
reason applied to the relations of man with man and of man with the State. 
They urge that under no circumstances should our liberty be supplanted by 
license, lest might should become right. 


DIRECT LEGISLATION IN IOWA 


69 


7 5 For the statement of these arguments the writer is largely indebted to 
Wilcox’s Government Toy All the People, pp. 36-104. See also Kales’s 
Unpopular Government, pp. 120, 121. 

76 For these arguments against the referendum see Wilcox’s Government 
by All the People, pp. 139-148. 

77 This is the statement made by a resident of Oregon who is friendly to 
the new experiment. 

78 Taft’s Popular Government, pp. 46, 48. 

79 National Municipal Review, Yol. Ill, p. 265. 

so See Wilcox’s Government by All the People, pp. 231-265; North 
American Review, Yol. CXCVIII, pp. 153-160; The Nation, Yol. CXCY, pp. 
324, 325. 

si Taft’s Popular Government, pp. 45, 53, 56, 57; Lowell’s Public 
Opinion and Popular Government, pp. 208, 209, 211. 

82 Taft’s Popular Government, pp. 93, 94. 

83 So declares Mr. Richard W. Montague, a graduate of the Law College 
of the State University of Iowa and a long-time resident of Portland, 
Oregon. See his recent article on The Oregon System at Work in the 
National Municipal Review, Yol. Ill, pp. 256-283. 

84 National Municipal Review, Yol. Ill, p. 266; Equity, Yol. X, p. 105; 
The Annals of the American Academy of Political and Social Science, Vol. 
XL III, pp. 71-73. 

85 Beard and Shultz’s Documents on the Initiative, Referendum, and 
Recall, p. 19. 

se Wilson’s The New Freedom, p. 234. In 1912 the people of Oregon 
defeated a proposition initiated to abolish the State Senate: they are to 
vote upon it again in 1914. See The Annals of the American Academy of 
Political and Social Science, Yol. XLIII, pp. 71, 74. 

87 Lowell’s Public Opinion and Popular Government, pp. 155-157; 
Equity, Yol. XIII, p. 62. 

88 Wilson’s The New Freedom, p. 115. Read especially what he has to 
say on “Bosses” and the Oregon system, pp. 224-226. 

89 Mr. F.ord in The Annals of the American Academy of Political and 
Social Science, Yol. XLIII, p. 71. 

90 Wilson’s The New Freedom, pp. Ill, 112, 113, 114, 119, 120, 125, 129, 
130, 131; Popular Science Monthly, Vol. LXXXIY, pp. 375-381. 

President Lowell of Harvard University in his Public Opinion and Pop- 


70 


APPLIED HISTORY 


ular Government, pp. 139, 140, 141, believes that people exaggerate the faults 
of their legislators: “We suffer, no doubt, from a lack of experience in our 
public bodies; but we suffer also from a self-confidence that causes everyone- 
to think himself capable of forming a valuable opinion on every subject, and 
not less from a general lack of mutual confidence in one another. This last 
is a highly important matter, for it lies at the root of much of our evil- 
doing in politics, in business, and in daily life.” 

si Lowell’s Public Opinion and Popular Government, pp. 157-159; 
Equity, Yol. XI, p. 14. 

82 Equity, Yol. XIY, pp. 63, 65; Beard and Shultz’s Documents on the 
Initiative, Beferendum, and Becall, pp. 22-24; Wilson’s The New Freedom, 
pp. 228, 229, 235. President Wilson believes there are States where it is 
perhaps premature to discuss the initiative and referendum at all. 

»3 Equity, Yol. X, p. 94, Yol. XII, p. 146, Yol. XY, pp. 7, 8; Beard and 
Shultz’s Documents on the Initiative, Beferendum, and Becall, p. 33; Wil¬ 
son’s The New Freedom, p. 239. 

The notion that the electors will be eternally busy voting on measures 
referred to them under the new regime is, of course, quite wrong; for elec¬ 
tions, generally speaking, take place, as before, at the regular time. 

Arguments for the initiative and referendum may be found excellently 
presented in Wilcox’s Government by All the People, pp. 104-128, 149-164, 
266-298. 

94 Equity, Yol. XIY, pp. 136, 137. 

95 The Annals of the American Academy of Political and Social Science, 
Yol. XLIII, pp. 43, 142; Wilcox’s Government by All the People, pp. 104- 
112, 272-280, 290-298. See also the speech of Mr. Jonathan Bourne, Jr., in 
the United States Senate on May 5, 1910. 

96 Such is the opinion of Mr. Charles D. Mahaffie, a Portland lawyer, in a 
letter to the writer. See also Equity, Yol. XII, pp. 19, 20. 

97 National Municipal Beview, Vol. Ill, pp. 266-268. 

98 Equity, Yol. XIY, pp. 59, 62, 66; National Municipal Beview, Yol. Ill, 
p. 267. 

99 That Oregon is the crank’s paradise and the happy home of hobbyists, 
extremists, and fanatics is a statement frequently made, but huge majorities 
against their plans have squelched their foolish agitation.— National Munic¬ 
ipal Beview, Yol. Ill, p. 265, and for Oregon’s record see pp. 271-278; also 
Political Science Quarterly, Yol. XXYI, pp. 432, 442. As to Switzerland’s 
record see Lowell’s Public Opinion and Popular Government, p. 168; and 
The Annals of the American Academy of Political and Social Science, Yol. 
XLIII, pp. 110-145. 


DIRECT LEGISLATION IN IOWA 


71 


100 For the record of all States down to 1910 and 1912 see The Annals of 
the American Academy of Political and Social Science, Yol. XLIII, pp. 89- 
103; and Lowell’s Public Opinion and Popular Government, pp. 368-398. 

101 National Municipal Review, Yol. Ill, p. 268; Equity, Yol. XIY, pp. 
136, 137; Beard and Shultz’s Documents on the Initiative, Referendum, and 
Recall, pp. 38, 39, 41, 48. 

Mr. Lowell has made a study of percentages of votes in elections.— See 
Public Opinion and Popular Government, pp. 368-398. See also The Annals 
of the American Academy of Political and Social Science, Yol. XLIII, pp. 
89, 94-97, 101, 102, 103, 212. 

Mr. Allen H. Eaton in The Oregon System, pp. 48, 49, asserts that the 
people ‘ 1 have undeniably used discretion in their decisions * but he does not 
hesitate to point out a few disadvantages. Too many measures are sub¬ 
mitted; trick measures slip in through deceitful headings or titles; some 
measures are subsequently repeated in the face of overwhelming defeat; 
general ignorance of certain measures is due to the multiplicity of measures 
on the ballots and to their complicated and technical character; the voters 
cut down expenses in certain communities with which they are not familiar; 
and too many local measures get on the ballot. Mr. Eaton’s remedies may 
be found on pp. 148-156. 

102 The writer is chiefly indebted to Mr. C. F. Taylor’s Equity, Yol. XY, 
pp. 22-33, for what he believes to be the essentials of an efficient initiative 
and referendum system. 

103 In South Dakota the emergency clause has been used in forty-three 
percent of the laws passed.— See Lowell’s Public Opinion and Popular 
Government, p. 175. 

104 In Wisconsin there are to be no circulating petitions until a bill sub¬ 
mitted to the legislature has been defeated. The reason for such a system is 
that the people want to avail themselves of their legislative reference library, 
drafting department, the cooperation of university experts, and improved 
committee methods.— See The American Political Science Review, Yol. XXY, 
p. 590. 

105 For the numbers required in the different States see Equity, Yol. XY, 
pp. 34-47. In California the number is five percent on referendum petitions 
and five or eight percent on indirect and direct initiative petitions respec¬ 
tively. 

106 Mr. Taylor’s model amendment prohibits any State court from de¬ 
claring unconstitutional any measure made law by the people. 

107 See a stricture on this point in The Nation, Yol. CXCV, p. 325. 

108 it will be noticed that the proposed systems of Iowa, Minnesota, and 
Wisconsin depart in many particulars from the simplicity and directness of 
the Oregon plan.— See The American Year Boole, 1913, p. 76. 


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